Friday, January 26, 2007

From Discourses on the First Ten Books of Titus Livius, chapter 44, which is titled (in part) "It is not well to Threaten without Having the Power to Act":

From this we plainly see the folly and imprudence of demanding a thing, and saying beforehand that it is intended to be used for evil; and that one should never show one’s intentions, but endeavor to obtain one’s desires anyhow. For it is enough to ask a man to give up his arms, without telling him that you intend killing him with them; after you have the arms in hand, then you can do your will with them.

I'm writing to thank you for your contribution to the legal blogosphere because it was the primary influence that positively affected my most recent grades. While I can't prove causation, I feel comfortable with the assertion that your blog was a big help. As such, I view your blog as a great legal educational tool in addition to its entertainment value.

I'm currently a 3L. I started reading your blog (daily, sometimes 3 times a day) at the beginning of last summer or maybe in the spring of my 2L year. Over several months of reading entries on the Volokh Conspiracy, I began to acquire significantly better analytical skills. I noticed it in my day-to-day conversations among friends and in my school work.

I'd performed well in my first two years, but I didn't really understand what it meant to write a good law school exam. This last semester, I went into my examines with the confidence that I was going to write 'A' exams (and I did for the most part). My confidence and the knowledge supporting it was, in large part, a product of reading your blog.

The Volokh Conspiracy provides great examples of law school test writing. Frequently, the posts on your blog involve the application of law to facts. Of course, such law-to-fact application can be found in lots of places. But your blog is superior; it does a great job of law-to-fact application with a large variety of legal issues and a large variety of fact patterns. In addition to the wide variety of laws and facts, your posters tend to write more clearly, economically, and persuasively than other blogs, long form law review articles, or cases.

Additionally, the comments section of your blog is often filled with insightful critiques of the posts, which further enhances my analytical skills.

Some of my improvement was the natural product of working hard in law school. But a large part of it was my daily dose of The Volokh Conspiracy.

Thank you for your time. Please continue the good work.

Sincerely,
Adam Levin

Use these numbers for comparison, your mileage may vary, but, hey, if it worked for Mr. Levin, I'm delighted to hear it.

Flores v. State (Tex. App. Jan. 24, 2007), upholds a life sentence for a father's capital murder of his unborn twins. (Flores had admitted that "in the seven days prior to her delivery [he] stepped on her abdomen on two different occasions.")

Flores argued that the statute "violates the Establishment Clause of the United States Constitution because defining life as beginning 'at conception is religious, not medical or legal'"; that was properly rejected under Harris v. McRae. But what if he had been sentenced to death? Would that have been precluded by Coker v. Georgia -- which held that the death penalty for rape was unconstitutional, and which many have read as generally foreclosing the death penalty for crimes short of murder (but which the Lousiana Supreme Court has interpreted, controversially, as allowing the death penalty for rape of children)? Would it matter how old the fetuses were, and were would the constitutional line be drawn on that?

Serenity T. was born in June 2005 with symptoms of drug withdrawal. The Department of Children and Family Services attempted to provide voluntary family reunification services to Serenity's mother (Connie T.) but she failed to comply (the father's whereabouts were unknown). Serenity was detained and placed with a foster mother (H.G.) and a petition was filed alleging Connie's drug history (plus a history of mental health problems).... [In March 2006,] Serenity was still living with H. [apparently referring to H.G.], but H. had told the Department she was not interested in adopting Serenity (she believed the child should be placed with younger parents of Serenity's ethnic background, Dutch and Vietnamese, who are also Firefly fans).

OK, I made up the "who are also Firefly fans," but the rest is true. Surely the foster mother should be entirely free to decline to adopt a child for any reason or no reason at all, but it seems to me that the insistence on a Dutch-Vietnamese couple was remarkably detailed (whether it was H.G.'s insistence, or someone's inartful reformulation of H.G.'s less specific "I think she'd be happier with a Eurasian couple").

Yet, remarkably, the story has a happy ending, and an ethnically appropriate ending, for those who care about such things:

In April, the Department located a prospective adoptive couple, an "excellent match" with Serenity because one (of Dutch ancestry) is an officer at the Consulate General of the Netherlands in Los Angeles, and the other (of Vietnamese ancestry) is an FBI agent in Los Angeles.

What are the odds of that? In any case, the Dutch-Vietnamese couple is allowed to adopt Serenity T.; and H.G., who changed her mind and concluded she did want to adopt, has her ethnically specific wish (or at least someone's ethnically specific formulation of her wish), though not her recantation, satisfied.

"Eckenrode argues that there was no direct evidence that any weapons were, in fact, there to protect any illicit business, as opposed to merely expressions of Eckenrode's quiet enjoyment of his article I, section 24 right to bear arms." State v. Eckenrode, 2007 WL 177917 para. 17 (Wash. Sup. Ct. Jan. 25). The Washington Supreme Court finds that the circumstantial evidence was enough to rebut the quiet enjoyment theory.

(The reason for the inquiry is indeed the right to bear arms: "In the 'Hard Time for Armed Crime Act' of 1995, the people of the State of Washington recognized that '[a]rmed criminals pose an increasing and major threat to public safety and can turn any crime into serious injury or death.' Accordingly, under I-159, defendants who commit armed crimes generally receive enhanced sentences. Our constitution also guarantees the right to bear arms. [Wash.] Const. art. I, § 24. Over the years we have tried to harmonize both legal commands to ensure that people are not punished merely for exercising this constitutional right. To this end, to establish that a defendant was armed for purposes of the sentencing enhancement, the State must prove that a weapon was easily accessible and readily available for use and that there was a nexus or connection between the defendant, the crime, and the weapon.")

This opinion addresses defendants’ renewed motion to
dismiss the complaint on the ground of forum non conveniens
following a remand from the Appellate Division. After
carefully reviewing a hastily cobbled together record that
supposedly details the tortured and inordinately expensive
labors that the parties have endured during the initial
discovery phase of this litigation, I am now more convinced
that New Jersey remains an appropriate forum for resolution of
the instant dispute. Although the urbane land of Dante
Alighieri, Michelangelo Buonarroti, and Leonardo Da Vinci
might better suit defendants’ liking than the straightforward
home of Yogi Berra, Anthony Soprano, and Frank Sinatra, I
remain steadfast in my view that the Italian connection with
the goings-on in this case does not trump the reasonable
selection of New Jersey for its dispute resolution. I deny
defendants’ motion to dismiss.

II. BACKGROUND

I have already issued two opinions adjudicating the
parties’ motions to dismiss. In an unreported opinion, on
leave granted, the Appellate Division affirmed the denial of
defendant’s motion, but wryly noted, “while we affirm the Law
Division’s order, we do so without prejudice to defendants to
move for dismissal on the grounds of forum non conveniens at
an appropriate time.” Defendants claim that over the last six
months following the remand they have mustered sufficient
evidence of a frustratingly complex discovery process to
warrant dismissal now in favor of a European forum.

Hard upon the heels of the notorious economic wreckage of
Parmalat in Italy and around the globe, putative victims
seeking to protect themselves from the admitted wrongdoing of
Parmalat and its corporate managers established numerous
battle lines. The primary locus for the resolution of claims
relating to Parmalat-induced economic injuries is in Italy,
but the effects of the Parmalat fiasco are felt in scores of
corners of the Earth....

One more amusing item, from the discussion of the "Local Interest in Having Localized Controversies
Decided at Home" factor:

Regarding this fourth public interest factor, defendants
remind the court that the billion dollar fraud was
perpetrated, if at all, far from New Jersey. New Jersey, then,
would only have a morbid curiosity about the fallout from the
conduct of Parmalat’s venal managers....

We're giving away $2,000 this year to a college student who blogs about politics. Our scholarship is awarded annually.

* Your blog must contain unique and interesting information about political issues, current events, opinions, etc. No spam bloggers please!!!
* U.S. citizen;
* 3.0 GPA;
* Currently attending full-time in post-secondary education; and
* If you win, you must be willing to allow us to list your name and blog on this page.

We want to be able to say we knew you before you became a well educated, rich, and famous blogging legend.

The scholarship organizers tell me that full-time law students (and, I take it, other graduate students) are eligible. For more details, see here. "All submissions must be received before Sunday, February 4, 2007 (6 pm PST)."

Who wrote this? (The God Talk is especially in the last clause before the dash, but also in the clause before that.)

Kindly separated by nature and a wide ocean from the exterminating havoc of one quarter of the globe; too high-minded to endure the degradations of the others; possessing a chosen country, with room enough for our descendants to the thousandth and thousandth generation; entertaining a due sense of our equal right to the use of our own faculties, to the acquisitions of our own industry, to honor and confidence from our fellow-citizens, resulting not from birth, but from our actions and their sense of them; enlightened by a benign religion, professed, indeed, and practiced in various forms, yet all of them inculcating honesty, truth, temperance, gratitude, and the love of man; acknowledging and adoring an overruling Providence, which by all its dispensations proves that it delights in the happiness of man here and his greater happiness hereafter -- with all these blessings, what more is necessary to make us a happy and a prosperous people?

A popular computer security Web site was abruptly yanked offline this week by MySpace.com and GoDaddy, the world's largest domain name registrar, raising questions about free speech and Internet governance.

MySpace demanded that GoDaddy pull the plug on Seclists.org, which hosts some 250,000 pages of mailing list archives and other resources, because a list of thousands of MySpace usernames and passwords was archived on the site....

In a move that Seclists.org owner Fyodor Vaskovich said happened with no prior notice, the company [GoDaddy] deleted his domain name--causing his site to be effectively unreachable for about seven hours on Wednesday until he found out what was happening and removed the password list.

"They didn't tell me why they removed the site," Vaskovich, creator of the popular Nmap security auditing utility, said in a phone interview. "At a very minimum, we should get warning." ...

For her part, GoDaddy general counsel Christine Jones defended the abrupt deletion, saying: "We tried to contact the registrant, but they were not available at the time. To protect the MySpace users from potentially having private information revealed, we removed the site." ...

Jones and Vaskovich, however, tell substantially different versions of exactly what happened.... Vaskovich provided CNET News.com with a log of correspondence from GoDaddy that corroborates his version of the story.... GoDaddy did not immediately respond to follow-up questions....

There's certainly an important customer service question here; but I should also note that there's an interesting underlying First Amendment question that could have arisen in another context. Several states expressly outlaw the disclosure of computer passwords, even if the disclosure is done without the intention of helping criminals (and here it seems that Vaskovich didn't intend to help criminals, though when he learned of the post he probably realized that it may have the effect of helping some criminals):

Ark. Code § 5-41-206(a). A person commits computer password disclosure [generally a misdemeanor] if the person purposely and without authorization discloses a number, code, password, or other means of access to a computer or computer network that is subsequently used to access a computer or computer network.

Ga. Code § 16-9-93(e). Any person who discloses a number, code, password, or other means of access to a computer or computer network knowing that such disclosure is without authority and which results in damages (including the fair market value of any services used and victim expenditure) to the owner of the computer or computer network in excess of $500.00 shall be guilty of the [misdemeanor] crime of computer password disclosure [and shall be civilly liable to injured parties].

Kan. Stat. § 21-3755(c)(1). Computer password disclosure [a misdemeanor] is the unauthorized and intentional disclosure of a number, code, password or other means of access to a computer or computer network.

Minn. Stat. 609.8913. A person is guilty of a gross misdemeanor if the person knows or has reason to know that by facilitating access to a computer security system the person is aiding another who intends to commit a crime and in fact commits a crime. For purposes of this section, "facilitating access" includes the intentional disclosure of a computer password, identifying code, personal information number, or other confidential information about a computer security system which provides a person with the means or opportunity for the commission of a crime.Miss. Code § 97-45-5 (1). An offense against computer users [a misdemeanor] is the intentional ... (b) Use or disclosure to another, without consent, of the numbers, codes, passwords or other means of access to a computer, a computer system, a computer network or computer services.

Penn. Cons. Stat. § 7611(a). A person commits the offense of unlawful use of a computer if he ... (3) intentionally or knowingly and without authorization gives or publishes a password, identifying code, personal identification number or other confidential information about a computer, computer system, computer network, computer database, World Wide Web site or telecommunication device.

S.D. Codified Laws § 43-43B-1. A person is guilty of unlawful use of a computer system, software, or data if the person ... (3) Knowingly ... uses or discloses to another, or attempts to use or disclose to another, the numbers, codes, passwords, or other means of access to a computer system without the consent of the owner....

W. Va. Code § 61-3C-10. Any person who knowingly, willfully and without authorization discloses a password, identifying code, personal identification number or other confidential information about a computer security system to another person shall be guilty of a misdemeanor ....

If one of the states had jurisdiction over Seclists.org, and Vaskovich had kept the password list on the computer even after he knew it was there, would he be guilty under the relevant statute? Would the First Amendment protect his continued retention of the data on his computer? (I tend to think that the First Amendment would not protect this, for reasons discussed in Crime-Facilitating Speech, 57 Stanford Law Review 1095 (2005), but courts have not yet confronted the question.)

Today the U.S. Court of Appeals for the Sixth Circuit issued yet another divided panel decision in a habeas case. In Simmons v. Kapture, Patrick Simmons filed a petition for a writ of habeas corpus to challenge his guilty plea for "assault with intent to do great bodily harm less than murder" in Michigan state court. According to Simmons, his plea was not knowing and voluntary and he denied effective assistance f counsel at the plea stage. Simmons has initially lost his case, but the Supreme Court accepted cert in the case and remanded it to the Sixth Circuit for reconsideration in light of Halbert v. Michigan (2005), under which Simmons may have been entitled to an attorney for his appeal in state court.

Judge Boyce Martin, joined by Judge Martha Daughtrey, held that Halbert applied retroactively to Simmons because it did not announce a new rule of criminal procedure, and instead merely applied prior holdings. Thus, the panel majority concluded, "Simmons is
entitled to a writ of habeas corpus based on the state’s failure to appoint him appellate counsel forhis motion for leave to appeal his guilty plea."

District Judge Danny Reeves, sitting by designation, dissented on the grounds that the rule in Halbert should not apply retroctrively to Simmons' case because it was a "new rule" of criminal procedure that was not dictated by prior precedent, and because it coul not satisfy either exception to the bar on retroactive application of such a rule.

An increase in the minimum wage raises the costs of fast foods and other goods produced with large inputs of unskilled labor. Producers adjust both by substituting capital inputs and/or high-skilled labor for minimum-wage workers and, because the substitutes are more costly (otherwise the substitutions would have been made already), by raising prices. The higher prices reduce the producers' output and thus their demand for labor. The adjustments to the hike in the minimum wage are inefficient because they are motivated not by a higher real cost of low-skilled labor but by a government-mandated increase in the price of that labor. That increase has the same misallocative effect as monopoly pricing.

Although some workers benefit — those who were paid the old minimum wage but are worth the new, higher one to the employers — others are pushed into unemployment, the underground economy or crime. The losers are therefore likely to lose more than the gainers gain; they are also likely to be poorer people. And poor families are disproportionately hurt by the rise in the price of fast foods and other goods produced with low-skilled labor because these families spend a relatively large fraction of their incomes on such goods. And many, maybe most, of the gainers from a higher minimum wage are not poor. Most minimum-wage workers are part time, and for the majority their minimum-wage income supplements an income derived from other sources.

They further note that while some economists do not believe minimum wage increases have a significant effect, this view is in the minority, and few are likely to contend that a substantial increase, such as the 40 percent increase currently before Congress, would not have a negative employment effect.

If politicians want to help the poor, Becker and Posner argue that the Earned-Income Tax Credit (EITC) is a more efficient (or, really, less inefficient) means of achieving this end. The EITC is more effective means of redistributing wealth to the poor and produces fewer unwanted side effects.

UPDATE: I agree with those commentators who argue that it is important to consider the available empirical evidence. The bulk of this evidence shows, however, that the minimum wage generally has those effects that economic theory would predict (although the effects are often quite small). A recent summary of the empirical evidence can be found on Greg Mankiw's blog here.

The San Francisco Chroniclereports that the Bar Association of San Francisco will file a request with the State Bar of California that it invetigate whether Cully Stimson violated the rules of professional responsibility with his remarks about private law firms that represent Guantnamo detainees. According to the story, Stimson is licensed in California. While I have been quite critical of Stimson, I am skeptical that this investigation will produce any formal sanction against Stimson. (LvHB)

UPDATE: I think it is worth quoting Northwestern law professor Steven Lubet from the comments below:

The bar investigation of Stimson is a manifestly bad idea. While it is not frivolous to suggest that his conduct was "prejudicial to the administration of justice," a disciplinary proceeding will still do more harm than good. If anything, Stimson's remarks prompted the Attorney General to defend publicly the principle of universal representation, which is a good thing.

The report may have been loved by the politicians and headline writers but when climate scientists and environmental economists read the 670-page review, many said there were serious flaws.

These critics are not climate change sceptics, but researchers with years of experience who believe that human-induced climate change is real and that we need to act now.

Among those who are unimpressed is noted Carnegie Mellon environmental economist Richard Tol, whose work is cited extensively within the Stern Review:

"If a student of mine were to hand in this report as a Masters thesis, perhaps if I were in a good mood I would give him a 'D' for diligence; but more likely I would give him an 'F' for fail.

"There is a whole range of very basic economics mistakes that somebody who claims to be a Professor of Economics simply should not make," he told The Investigation on BBC Radio 4. . . .

"Stern consistently picks the most pessimistic for every choice that one can make. He overestimates through cherry-picking, he double counts particularly the risks and he underestimates what development and adaptation will do to impacts," he said.

Another critic of the Stern Review cited by the BBC is Yale's Robert Mendelsohn, who has written a brief yet fairly thorough critique of the report available here. While much of the debate over the Stern Review has focused on Stern's approach to disconting, Mendelsohn (like Tol) shows that the report's failings are much deeper. Among other things, Stern makes embeds many unrealistic or unfounded assumptions into his analysis that skew his results. The BBC story also reports that many of Stern's premises and claims are not supported by the work of the Intergovernmental Panel on Climate Change (IPCC).

I recently read Jan Crawford Greenburg's Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. Like co-blogger Orin Kerr, I agree that it's a "must-read." Indeed, it is probably the best book about the Supreme Court that I have ever read that was written by a journalist. Unlike some members of said profession, Greenburg has a solid understanding of both conservative and liberal legal thought and she uses it to good effect in trying to understand what the Court has done in the era of Rehnquist and Roberts. However, the real focus of the book are the Supreme Court nomination battles from Robert Bork's abortive nomination (1987) to Sam Alito's. There are numerous interesting revelatoins such as:

1. In 1986, Scalia was picked ahead of Bork in part because he was younger (and thus likely to stay on the Court longer), and in part because some of the people in Reagan's Justice Department actually thought that Scalia was more conservative than Bork.

2. Reagan's DOJ staff had correctly predicted in advance that Anthony Kennedy would not be a solid conservative vote on the Court, which is why he was not appointed until after the nominations of Bork and Douglas Ginsburg went down in flames.

3. David Souter was even more "stealthy" than is often believed. He and his backers were apparently able to convince not only President Bush 41, but also such DOJ officials as Federalist society co-founder Lee Liberman (now Lee Liberman Otis), that he was a conservative jurist.

4. Greenburg adds to the growing pile of evidence that Justice Thomas is not merely an acolyte of Justice Scalia's. She even contends that Thomas has influenced Scalia more than the other way around.

5. Sam Alito was Harriet Miers' personal first choice for the nomination that (at first) went to Miers herself. It was President Bush who insisted on choosing a woman as the nominee, which resulted in the decision to nominate Miers.

7. Bush withdrew Miers' nomination in large part because of her poor performance in mock interviews and meetings with GOP senators, not because of the revolt on the right. He believed (wrongly in my view) that conservatives would have come around to supporting Miers.

8. Sixth Circuit Judge Alice Batchelder, in my view possibly the strongest potential conservative female nominee that Bush could have picked, was removed from consideration because of a very minor conflict of interest in one of her cases (she had failed to recuse herself from a case that involved a company in which her husband - unbeknownst to the Judge herself - owned stock through a mutual fund).

I do have a few reservations about the book.

First, Greenburg is convinced that, with the Roberts and Alito nominations, conservatives have won a decisive victory in the struggle for control of the Supreme Court. I am more skeptical. The Court currently has five conservatives and four liberals, with one of the conservatives (Kennedy) often prone to defecting (as Greenburg acknowledges). Conservative control of the Court is therefore quite tenuous (though more solid than before Bush's two appointments). A lot depends on who gets to pick the next few nominees. If a liberal Democrat becomes president in 2008 (especially with a Democratic Senate majority), Bush's handiwork might well be undone.

Second, I think Greenburg sometimes overstates the importance of abortion and other "social issues" relative to other matters at stake in the battle over the judiciary. While it is true that the former are especially prominent to the general public, the conservative and liberal legal elites that she focuses on in the book also care intensely about questions such as federalism, property rights, affirmative action, free speech, and economic regulation. Many of the conservatives and libertarians who opposed Miers' nomination did so in large part because of the opaqueness of her record on these latter questions (myself included). And the anti-Miers backlash was primarily an elite backlash rather than a popular one.

Finally, it is often difficult to evaluate Greenburg's claims because, like Bob Woodward, she usually does not footnote or otherwise identify her sources. While this may be an inevitable aspect of investigative journalism, it does make it difficult for outsiders to assess the book's validity.

Such caveats notwithstanding, this is a great book, and anyone interested in Supreme Court nomination battles should definitely read it!

Thursday, January 25, 2007

Does language inserted into a Congressional Committee Report accompanying a federal appropriations bill carry the force of law? No, concluded the U.S. Court of Appeals for the Ninth Circuit yesterday in Northwest Environmental Defense Center v. Bonneville Power Association, concluding that such language could not require the Bonneville Power Administration (BPA) to cut off funding for the Fish Passage Center (FPC).

The case arose when Senator Larry Craig (R-ID) decided to cut off BPA funding for the FPC (as explained in this Washington Post story that alerted me to the decision). Senator Craig sought to defund the Center because it conducted research documenting the harm hydropower projects cause to salmon and steelhead populations in the Pacific Northwest. So, Senator Craig stuck language instructing the BPA to cut off the Center’s funds, and transfer the monies to regional universities (ostensibly for the purpose of saving taxpayer money) into the Conference Committee report. [Ed. — Yes, this would be an example of the politically motivated suppression of science by a Republican.]

When the BPA sought to reallocate the FPC’s funding, in accordance with the report language, various environmental groups filed suit. After assuring itself that it had jurisdiction to hear the claims, the Ninth Circuit panel opinion, written by Judge Gould, explained what BPA did wrong.

BPA treated the committee report language as if the language placed a legal obligation on BPA to transfer the functions of the FPC. However, . . . committee report language unconnected to the text of an enacted statute has no binding legal import, and it was contrary to law for BPA to base its decision to transfer the FPC [funds] on its belief that “the US Congress passed legislation . . . forbid[ding] BPA from making additional obligations in support of the Fish Passage Center.”

Language in the Conference Report on a given bill is nothing more than “legislative history,” the panel reasoned, and legislative history does not have legally binding effect.

The case law of the Supreme Court and our court establishes that legislative history, untethered to text in an enacted statute, has no compulsive legal effect. It was thus contrary to law for BPA to conclude, from committee report language alone, that it was bound to transfer the functions of the FPC.

This decision is not only of potential environmental significance (particularly for those of us who enjoy fly-fishing for salmon and look forward to steelhead fishing in the future), but it is also interesting insofar as it suggests that federal agencies can ignore report language purporting to instruct agencies how they should spend federal appropriations. (Whether federal agencies would face political repercussions for flouting Congressional instructions in this manner is another question.)

There have been quite a few accusations against the Bush Administration for politically motivated abuse of science. Many of these accusations have merit, but not all. Some charges have been exaggerated. One recent example is PEER's charge that the National Park Service was altering its account of the Grand Canyon's origins to accomodate creationists. Many attacks have also been quite partisan, stressing the failings of the Bush Administration without comparing its abuses to those of other administations, and there has been relatively little consideration of the broader institutional context in which political science abuse occurs. Such examination would not excuse the Bush Administation for its missteps and abuses, but it would faciliate serious discussion of how to reduce science politicization.

The canonical text for those who assail the Bush Administration's abuse of science is The Republican War on Science by Chris Mooney. Mooney maintains that the political right is primarily responsible for political science abuse, and lays most of the blame at the feet of corporate lobbyists and religious conservatives. While acknowledging, in passing, that environmental activists and Democratic administrations have engaged in political science abuse of their own, he trains his sights on the Right.

Mooney's book was recently released in an expanded and updated paperback edition. I wrote a review of this edition for Regulation, that is now posted on SSRN. The abstract follows:

Chris Mooney's "Republican War on Science" argues that the political right, and in particular the Bush Administration, are guilty of rampant "political science abuse," defined as "any attempt to inappropriately undermine, alter, or otherwise interfere with the scientific process, or scientific conclusions, for political or ideological reasons." Mooney correctly identifies many example of such abuse by conservative organizations and Republican politicians, but some of his charges are overwrought, if not misleading. Overall the book has three central flaws. First, Mooney has a penchant for characterizing some legitimate science-related policy positions with which he disagrees as "abuses" of science. Second, he exhibits a blind spot to the misuse and politicization of science by those who espouse political agendas with which he agrees. Third and most important, Mooney pays little attention to the larger institutional context that generates political pressures on science. The politicization of science is a real problem, yet lacking any serious consideration of the broader institutional context in which such politicization occurs, Republican War ultimately fails in its diagnosis and prescriptions.

The Bush Administration deserves criticism for politicizing and abusing science in many instances. Yet science abuse is not a partisan phenomenon. There is plenty of blame to go around. Even if the Bush Administration's abuses are quantitatively or qualitatively worse than its predecessors — and I am unconvinced on this score — the solution to the problem of political science abuse lies in institutional reform, rather than partisan politics.

UPDATE: One of the best examples of the politicization of science by the "left" — and one of the few that Mooney acknowledges — is the treatment of agricultural biotechnology, and the decision to subject such products to more stringent regulatory review than those developed with other methods. This policy has no scientific basis, as the National Academy of Sciences has stated many times.

Another example would be claims by environmentalist groups that pesticide residues on foods pose a significant cancer risk, a claim which the NAS has also rejected. A third would be seeking endangered species listings for the purpose of halting development. A fourth would be efforts to claim asthma incidence (as opposed to asthma attacks) are related to outdoor air pollution, when there is no data to support such a claim. A fifth would be the EPA's second-hand smoke study, which a federal court found was driven to reach a predetermined result. A sixth would be claims that the "precautionary principle" is a "science-based" approach to risk, when it acutally reflects a normative policy judgment about how to weigh and evaluate risks. A seventh would be the compounded conservatisms that are embedded into many agency risk assessments, such as those conducted for the federal Superfund program. An eighth would be molding "ecosystem management" to satisfy non-scientific normative preferences about how land should be managed. And so on.

Some of these occurred within the Clinton Administration, others were the result of interest group action and occurred at other times. Overall, however, one can only claim the Clinton Administration never abused science for political reasons if one wasn't paying attention. Examples beyond those mentioned above are easy to come by. Here are two from Ronald Bailey:

In 1993, Princeton University physicist William Happer was fired from the Department of Energy because he disagreed with Vice President Al Gore's views on stratospheric ozone depletion. In 1994, President Bill Clinton rejected the finding from the Embryo Research Panel of the National Institutes of Health which declared that the intentional creation of human embryos for genetic research was ethical. Clinton simply banned any federal funding for such research.

Others include the witholding of agency analyses so as to prevent their publication at poltiically inconvenient times and the gross misrepresentation of scientific findings by agency officials in speeches and media appearances.

If we are allowed to consider the plaintiffs' bar as a "left" interest — as corporate groups are considered to be on the "right" — then there are many more examples relating to all sorts of "junk science" tort claims, some of which my co-blogger David Bernstein has documented. Then there is the politicization and denigration of science that occurs within academia, such as Paul Gross and Norman Levitt documented in their book Higher Superstition: The Academic Left and Its Quarrels with Science.

It is certainly possible that the Bush Administration is worse than prior Democratic Administrations, but I don't think Mooney makes his case because he doesn't seriously examine the most serious charges against prior administrations, nor does he consider the broader institutional context. This does not excuse the Bush Adminsitration at all, but it is relevant if one seriously seeks to address the underlying problem.

If the Bush Administration is worse than prior administrations, there are potential, non-partisan explanations. For instance, I suspect it makes a difference whether Congress is controlled by the opposing party. When it isn't, an administration may act more irresponsibly. Yet if this is the case, it is not because Republicans are in power, but because there is insufficient legislative oversight, and there is no reason to believe that unified Democratic government would behave any better.

Another possible argument is that politically motivated science abuse by the Right should be a greater concern because the Republican Party has substantial political power, whereas leftist luddite academics can do little more than contaminate the minds of their most gullible students. This argument is plausible, but it is not the claim Mooney makes in his book (though I have heard him make it in a speech). Mooney's argument is not just that the GOP attacks science (it does), and that this is bad (it is), but also that Democrats and the Left are much better. This is where his argument has the greatest problems. Among other things, I find the argument unconvincing because left-leaning science abuse is quite rampant in certain policy areas, such as environmental protection.

[NOTE: I hit publish before I was finished this update, so if it appears to have changed, it did. I added more examples and fixed some typos.]

20th Century Fox served YouTube with a subpoena Wednesday demanding the Google-owned viral video site disclose the identity of a user who uploaded copies of entire recent episodes of primetime series "24" and "The Simpsons".

The subpoena, which first came to light on the blog Google, was granted by a judge in U.S. District Court for the Northern District of California after being filed ... on January 18. It is not yet known whether YouTube has complied with the request....

The "24" episodes in question actually appeared on YouTube prior to their primetime January 14 premiere on the Fox broadcast network, which spread four hourlong episodes of the hit drama over two consecutive nights. Fox became aware the episodes were on YouTube on January 8, according to the subpoena....

Prof. Alasdair Roberts notes that Feb. 6 is the 70th anniversary of Roosevelt's presenting his Supreme Court-packing proposal; to mark this, he's put up a selection of Feb. 1937 and March 1937 editorial cartoons here (to go from cartoon to cartoon, use the arrows at the bottom of the page, which might require you to scroll down a bit on your screen). Very interesting stuff.

Disclaimer: I'm passing this along just because it is a very interesting window on that era, not to express any view on Roosevelt, the Court-packing plan, 1937, or anything else.

As football fans know, the Superbowl will match two teams with head coaches who are products of the "Cover Two" or "Tampa Two" defensive schemes. Although watching the games last weekend, I recognized it much more in the Bears than in the Colts, especially with the way they are using Bob Sanders to try to shore up against the run, but I may just not be as familiar with the Colts as the Bears as I saw the Bears play many more times this year than the Colts.

Anyway, this fall Sports Illustrated had a brilliant article analyzing the Tampa Two defensive scheme (I had never heard it referred to by that moniker until reading the article), its history, how it works, and how to attack it. It really opened my eyes as to what they are trying to do out there. Must-read material in anticipation of the Super Bowl. And if you are a casual fan invited to a Super Bowl party, if you read this one article you'll be able to drop many an insight sure to impress your host.

The article may be for subscribers only. The article was printed in the November 27, 2006 issue if you want to try to locate it somewhere else.

The online version of the article appears to omits some of the supplementary material that was in the print version, especially a fascinating sidebar on the "prototypes" for each of the the various positions. Of particular interest to me was the observation that Jack Lambert was the prototypical middle linebacker in the Cover Two scheme (because of his speed and athleticism) and Mel Blount was the prototype cornerback (because of his size and physical play). If the sidebar is somewhere on the SI website and I just missed it, please post it in the Comments if you find it.

I recall reading once that there are only two types of sports magazines--Sports Illustrated and everything else. I think this is a good example of that observation.

Yesterday the U.S. Court of Appeals for the Sixth Circuit issued yet another divided panel opinion in a habeas case. In Hamilton v. Morgan, the panel majority denied the Quinn Hamilton's habeas petition seeking to overturn his state court conviction for armed robbery and evading arrest on the grounds that he was prejudiced by the state court's decision to declare a potential witness unavailable for trial and permit the state to introduce prior testimony from a preliminary hearing and suppression hearing instead. Judge Eugene Siler, joined by Judge Alice Batchelder, found that the state made sufficient good faith efforts to procure the relevant witness before trial, and that when these efforts were unsuccessful, "the decision of the Tennessee courts to allow prior testimony of a witness deemed unavailable for trial was neither 'contrary to' nor 'an unreasonable application of' federal law."

Judge Karen Moore dissented. According to Judge Moore, the prosecutor failed to meet his burden of showing that the witness was unavailable because "he submitted no evidence in support of his motion" (emphasis in original), and because the reliance upon prior testimony "almost certainly influenced the jury’s verdict." Wrote Moore, "[b]ecause the majority’s decision effectively eradicates the burden of proof that the Supreme Court established, I respectfully dissent."

Wednesday, January 24, 2007

There's been a lot of buzz recently about Attorney General Gonzales's testimony in which he says "there is no express grant of habeas in the Constitution" and that "The Constitution doesn't say every individual in the United States or every citizen is hereby granted or assured the right of habeas." Some have suggested that this is a deliberate claim that there's no constitutional right to habeas, but my tentative sense is that (1) it's hard to get that much out of this extemporaneous exchange, which is sometimes not entirely articulate and burdened with interruptions, and (2) more broadly, there's a lot less to this than meets the eye. Let me explain why, though let me also first stress that I'm not a habeas maven, and I might well be in error on some of this.

1. To begin with, we have to recognize that the habeas exchange happened against the backdrop of Gonzales's written testimony (which Specter specifically referred to earlier in the hearing). I tend to credit such written and edited materials more than I do oral unscripted exchanges; and here is what this material says, in relevant part:

I am aware that two bills were introduced in the last Congress, and are likely to be reintroduced, that would amend the federal habeas statute by deleting the MCA [Military Commissions Act] restrictions in their entirety. I believe that such proposals to amend the MCA are ill-advised and frankly defy common sense.

The MCA's restrictions on habeas corpus petitions did not represent any break from the past. Indeed, it has been well-established since World War 2 that enemy combatants captured abroad have no constitutional right to habeas petitions in the United States courts. As the Supreme Court recognized in Johnson v. Eisentrager, 339 U.S. 763 (1950), the extension of habeas corpus to alien combatants captured abroad “would hamper the war effort and bring aid and comfort to the enemy,” id. at 779, and the Constitution requires no such thing, see id. at 780-81. The Constitution did not give the right of habeas corpus to the several hundred thousand German and Japanese soldiers detained by the United States during World War 2, and it does not provide that right to the alien enemy combatants detained in the present conflict.

Congress endorsed this principle in the Detainee Treatment Act of 2005, which removed federal courts jurisdiction over habeas corpus petitions filed by the detainees at Guantanamo Bay. After the Supreme Court held in Hamdan v. Rumsfeld that these restrictions did not apply to the several hundred petitions pending at the time of its enactment, Congress passed the broader restrictions under the MCA, which apply to the petitions of all enemy combatants in United States custody, including pending petitions. The MCA’s restrictions prevent terrorists captured on the battlefield from continuing to fight us in our courts. They are necessary to limit the burden that litigating the hundreds, and potentially thousands, of enemy combatant petitions would impose on the United States in this conflict and future conflicts.

The existing restrictions should be preserved. Given the military necessities of the war on terror, it is common sense to do so, and to preserve, more broadly, that which the MCA achieved so well -– a priority system that puts the security of our country and citizens first and still respects human rights while ensuring that terrorists are not given more rights than our men and women in uniform.

Here, Gonzales is saying that "enemy combatants captured abroad have no constitutional right to habeas petitions in the United States courts"; and, at least as applied to combatants who are detained abroad as well as having been captured abroad, my sense is that Gonzales is on sound territory, given Jonhson v. Eisentrager.

2. We also have to recognize that the exchange happened against the backdrop of Rasul v. Bush, the 2004 Supreme Court case which did hold that the Guantanamo detainees had a right to petition for habeas corpus, notwithstanding Johnson v. Eisentrager, the 1950 case which held that detainees in Germany had no such right. How could the two cases be reconciled? Well, here's the key passage on the subject from Rasul:

Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.

Not only are petitioners differently situated from the Eisentrager detainees, but the Court in Eisentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners' constitutional entitlement to habeas corpus. The Court had far less to say on the question of the petitioners' statutory entitlement to habeas review. Its only statement on the subject was a passing reference to the absence of statutory authorization: "Nothing in the text of the Constitution extends such a right, nor does anything in our statutes."

The Rasul Court then went on to explain that post-Eisentrager changes to how the habeas statute is interpreted do give the Guantanamo detainees a statutory right to habeas. As best I can tell, it did not hold that the detainees had a constitutional right to habeas.

So the rule today seems to be: Some detainees, at least those kept abroad, lack constitutional rights to habeas (Eisentrager wasn't overruled by Rasul as to this issue). Guantanamo detainees have statutory rights to habeas. Guantanamo detainees might also have constitutional rights to habeas, on the theory that they "differ from the Eisentrager detainees in important respects," but the Court in Rasul had no occasion to specifically decide that. (The Rasul Court noted that "Because subsequent decisions of this Court have filled the statutory gap that had occasioned Eisentrager's resort to 'fundamentals,' persons detained outside the territorial jurisdiction of any federal district court no longer need rely on the Constitution as the source of their right to federal habeas review.")

3. With this in mind, we can look at the Specter-Gonzales oral exchange:

SEN. SPECTER: ... Where you have the Constitution having an explicit provision, a writ of habeas corpus cannot be suspended except rebellion or invasion, and you have the Supreme Court saying that habeas corpus rights apply to Guantanamo detainees, aliens in Guantanamo. After an elaborate discussion as to why, how can there be a statutory taking of habeas corpus when there's an express constitutional provision that it can't be suspended and an explicit Supreme Court holding that it applies to Guantanamo alien detainees?

ATTY GEN. GONZALES: A couple of things, Senator. I believe that the Supreme Court case you are referring to dealt only with the statutory right to habeas, not the Constitutional right to habeas.

SEN. SPECTER: Well, you're not right about that. It's plain on its face; they're talking about the constitutional right to habeas corpus. They talk about habeas corpus being guaranteed by the Constitution except in cases of invasion or rebellion. And they talk about John at Runnymede and the Magna Carta and the doctrine being embedded in the Constitution.

ATTY GEN. GONZALES: Sir, the fact that they may have talked about the constitutional right of habeas doesn't mean that the decision dealt with the constitutional rights of habeas.

SEN. SPECTER: When did you last read the case?

ATTY GEN. GONZALES: It has been a while. But I'd be happy to — I will go back and look at it.

SEN. SPECTER: — yesterday or this morning again.

ATTY GEN. GONZALES: I will go back and look at it.

So far, it looks to me like Gonzales is simply arguing that Rasul focused on the statutory right to habeas, not the constitutional right; and I think that he is correct here. But then he goes on:

[ATTY GEN. GONZALES:] The fact that the Constitution — again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away. But there's — it's never been the case. I'm not aware of the Supreme Court --

SEN. SPECTER: Now wait a minute. The Constitution says you can't take it away except in case of rebellion or invasion. Doesn't that mean you have the right of habeas corpus --

ATTY GEN. GONZALES: I made my --

SEN. SPECTER: — unless there's an invasion or rebellion?

ATTY GEN. GONZALES: I meant by that comment the Constitution doesn't say every individual in the United States, or every citizen, is hereby granted or assured the right to habeas. It doesn't say that. It simply says the right of habeas corpus shall not be suspended except by --

SEN. SPECTER: You may be treading on your interdiction and violating common sense, Mr. Attorney General.

Things are getting a bit fragmentary here, and a bit digressive, so it's hard to tell what Gonzales is saying here; and he does seem to be going beyond Eisentrager, which specifically denied the aliens' right to habeas (at least when they were detained outside the U.S.) because they were aliens. Still, I don't read this as arguing that there is no constitutional right to habeas at all — he is acknowledging that "There is a [constitutional] prohibition against taking [habeas] away." Rather, he is arguing that not everyone has the constitutional right to habeas.

My guess, based on the rather fragmentary exchange, is that he's arguing that the Constitution is referring to some preexisting historically recognized habeas right, a right that doesn't extend to everyone under all circumstances (even setting aside rebellion or invasion), and not even to all citizens. As to that historically recognized right, there is indeed, he's saying, "a [constitutional] prohibition against taking it away." (Recall the provision itself: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.") But the Constitution doesn't define the contours of that right, or make it categorically applicable to everyone, he's arguing; the contours of the right have to be understood by looking at its historical scope.

4. So, the bottom line: Gonzales's written statement, like many written and edited statements, is fairly comprehensible, but blazes no new trails as to constitutional habeas rights. The first part of Gonzales's oral remarks, which seemed to refer to Rasul's focusing on the statutory habeas right, is probably right and at least a defensible characterization of Rasul.

The second part of Gonzales's remarks is far less clear, but probably doesn't claim that no habeas rights are protected by the Constitution. It does seem to suggest that in some situations some citizens lack habeas rights, which is beyond what Eisentrager said. But it's hard to know for sure what exactly Gonzales is driving at there, because the remarks are brief and fragmentary.

So, to repeat what I started with: (A) It's hard to get that much out of this extemporaneous exchange, which is sometimes not entirely articulate and burdened with interruptions. (B) There's a lot less to this than meets the eye, especially given that a good deal of this is a fairly esoteric discussion of statutory vs. constitutional habeas entitlements. (C) At the same time, I'm not a habeas maven, and may have missed something important here.

reports the Telegraph. "Santiago Miramar, the only villager who would comment on this week's events, said there were few in Fago who didn't consider themselves an enemy of the mayor." My question: If he's so disliked, how did he get elected?

In a few weeks, I'll be teaching the Sophophone case in my criminal law class, and I'd like to know how the defendant's name (Sanexay Sophophone) is pronounced.

Some have speculated that it's Greek, but I rather doubt it, despite the existence of the Greek elements "soph-" and "-phone." Sanexay isn't a Greek name, and this isn't a very Greek-looking face. (Yes, it's hard to conclusively tell ethnicity from a face, but it does seem probative, at least in this instance.) My sense is that the name comes from Laos, but I'm not positive.

Can anyone tell me how such a name would be pronounced by those who speak the language from which the name derives? I realize that the normal English pronunciation need not track the original, but I'm still curious about it. Thanks!

Proposed Brazoria, Texas Ordinance Banning Use of "Nigger" as a Fighting Word:

Several people e-mailed me to ask about it. The ordinance, as currently drafted, would provide an up to $500 fine for people who "intentionally or knowingly use[] the word 'nigger' in a[n] abusive, indecent, hurtful, degrading or insulting way in a public place, and the use of the word by its very utterance tends to incite an immediate breach of the peace." A few thoughts:

(1) Words that "by [their] very utterance tend[] to incite an immediate breach of the peace" and are "directed to the person of the hearer" -- which is to say personal insults said to a particular person, and not just insulting words about third parties said in a general speech, on a billboard, in a book, and so on -- are indeed unprotected by the First Amendment, under the so-called "fighting words" exception.

(2) This ordinance has no "directed to the person of the hearer" limitation: It would, for instance, ban even "hurtful" or "degrading" uses of "nigger" in public speeches that aren't directed at any particular person who is to be insulted. If read literally, it would therefore be unconstitutionally overbroad.

(3) A court might interpret the ordinance as implicitly limited to statements "directed to the person of the hearer," especially since a similarly worded state law (see below) has been so read. But the ordinance would still be unconstitutional even with this limitation: While a total ban on all fighting words would be permissible, a selective ban only on racist fighting words -- or only on this racist fighting word -- is unconstitutional. The Supreme Court so held as to a very similar ordinance in R.A.V. v. City of St. Paul (1992).

(4) The ordinance is also superfluous. Texas Penal Code 42.01(a)(1) already makes it an offense if a person "intentionally or knowingly" "uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace"; Texas courts have read this as limited to "fighting words," but of course covering all such insults, not just "nigger." The offense is "a class C misdemeanor," which may be punished by a fine of up to $500, the same fine the ordinance would impose.

Bill Patry, who eats, breathes, and lives copyright, has just published a new seven-volume copyright treatise; I haven't yet had a chance to read through the sample chapters I've been sent, but I expect the work to be superb, and Roger Parloff (Senior Legal Editor at Fortune) agrees. Here's an excerpt from Parloff's Jan. 23 review (which also calls the treatise "amazing"):

Patry is currently senior copyright counsel at Google, and in previous lives has served as a full-time professor at Cardozo Law School (5 years), copyright counsel to the U.S. House of Representatives (3.5 years), Policy Planning Advisor to the Register of Copyrights (4.5 years), and as a copyright litigator in private practice (12 years). (He also writes The Patry Copyright Blog, whose items I rip off from time to time.)

What's new about this treatise? Is it a wiki? No, thank God. Just the opposite, really. It's a 7-volume, 5,830-page treatise (available here from Thomson/West for the low low price of $1,498) that was--incredibly--written entirely by Patry....

The treatise comes with its own blog, which will include notes from Patry and comments posted by readers. (Patry is also the author of The Patry Copyright Blog.) The work sounds like a tremendous addition to the field (and I say this as someone who is a fan of the Nimmer Copyright treatise, too).

In particular, some students [in the audience at Carter's talk at Brandeis University] challenged Carter on a sentence that has brought him much grief. On Page 213 of his book, Carter wrote: "It is imperative that the general Arab community and all significant Palestinian groups make it clear that they will end the suicide bombings and other acts of terrorism when international laws and the ultimate goals of the Roadmap for Peace are accepted by Israel."

This sentence, the students noted, suggests that suicide bombings are a tactic of war, to be suspended only when peace is achieved. Carter agreed -- and apologized -- and said this sentence was a great mistake on his part.

"The sentence was worded in an absolutely improper and stupid way," Carter said. "I apologize to you and to everyone here . . . it was a mistake on my part."

I blogged about this item earlier, so I thought I'd blog about this response on Carter's part.

Computers, the Fourth Amendment, and the Analogy Game:
In the comment thread to my post on the symposium about applying the Fourth Amendment to computers, commenter "New World Dan" states:

This is one area that drives me nuts. I can't think of one single case where conventional law was inadequate to address 4th amendment issues in the "Digital Age". Internet records are really no different than phone, library or financial records. That, of course, hasn't stopped politicians, lawyers and judges from making it more complicated than it is, though.

Dan's comment is a bit misleading: Pretty much everyone agrees that non-content Internet records should be treated exactly like non-content phone, library, or financial records. But I take his broader point to be that there's nothing new here. We can apply the Fourth Amendment to computers by applying simple analogies to "conventional law."

I certainly appreciate Dan's instincts. Analogies are extremely important in this area, as they are in most areas of technology law. But the fact that they are important doesn't mean that they are simple or sufficient.

For example, if you think an e-mail message is just like a postal package, is e-mail more like a first-class package (protected by the Fourth Amendment) or a fourth-class package (not protected)? If you think e-mails are exactly like telephone calls, are they more like landline calls (protected by the Fourth Amendment) or cordless phone calls (not protected)? And what do you do with information like URLs — what's the "phone, library, or financial records" analogy to them? Are URLS more like the contents of phone calls or just records of the call?

"New World Dan" may find these questions easy, but I suspect most of us don't. And those who find these issues easy probably disagree with each other as to what the easy answers should be. The problem, I think, is that communications networks work by sending information out into the network, and we have an intuitive sense (for good practical reasons beyond the scope of this post) that some information should be protected and other information shouldn't be. This means that we'll always have competing "conventional law" analogies that appear plausible: one side will pick an analogy to protected information, the other to unprotected information.

As I see it, choosing among these competing analogies generally requires a broader normative theory of what should make a difference. Otherwise it's "turtles all the way down." Or at least it's turtles down to the foundational premise that the Fourth Amendment protects the inside of the home but not public spaces, which I think can plausibly be used to support nearly any result when applied to communications networks.

Consider Olmstead v. United States, the 1928 case that considered whether wiretapping was a Fourth Amendment search when agents tapped a private telephone line from the public street. Each side offered an analogy from "conventional law" to solve how the Fourth Amendment applied to the new technology of the telephone. To the majority, the analogy was public speech: wiretapping from a public street was just like listening to someone shouting their communications into the public square. To the dissent, the analogy was invading a private space: wiretapping was just like breaking into someone's home and listening to their private conversations.

Which side was right? To answer this, I think you need to go beyond simply applying "conventional law." The trick is how to apply conventional law, and there are substantial arguments for and against a very wide range of alternatives. Picking among the options requires a broader theory, which is why these questions are both interesting and hard.

My Piece on Sexual Regulations in Washington State Is on OpinionJournal.com's Federation Today:

It's available here. Welcome to readers who are clicking through from that piece to check out this blog -- if you'd like to leave comments on the subject, please do so by clicking on the "Comments" link immediately below (but please keep in mind our comments policy, which you'll find on the comments page).

One of the unexpected ways that Volokh.com has helped me as a writer and researcher is the very interesting reader analysis that I receive for articles that were written for a different publication. For example, the Rocky Mountain News website has an on-line forum for reader comments about my bi-weekly media analysis columns. But the comments posted there tend to very short, and often consist of not much more than simply agreeing or disagreeing with what I wrote. In contrast, when I create a short post of the VC, with a link to the column, VC readers will often offer many extended comments, some of which provide additional insights into the topic. It's an unexpected, and constructive media synergy.

As many VC readers know, I also write frequently for America's First Freedom, one of the NRA member magazines. AFF has no on-line published feedback for articles, and only some of the AFF articles are ever posted on the AFF website. Yesterday I posted a link to my latest AFF article, regarding whether the New Testament mandates pacifism. Unsurprisingly, many of the comments were very interesting. I'd like to address some issues raised by the commentators:

1. Since the NT plainly sanctions state violence (e.g., Romans 13), does this, in itself, negate all Christian pacifist arguments? My article, because of space limitations, only addressed the Gospels and Acts. I agree with the commenters who assert that it's intellectually plausible for the NT to sanction state violence, while requiring Christians to abstain from all violence--including by not serving as violent state actors. (That's separate from the question of whether the NT requires Christians to be pacifists in the first place.) The bifurcated view has the support of some eminent early Christian writers, such as Origen, as well as later ones, such as the great 20th century pacifist writer John Cadoux, who wrote that that he was rooting for the Allies to win WWII, even while arguing that Christians shouldn't participate in the fighting. Cadoux, Christian Pacifism Reexamined (Oxford, 1940), p. 141.

In practice, this view was sustainable only while Christians were a minority, without the responsibilities for running a state; in modern times, it's practicted only by Christian sects (e.g., Mennonites) who function as a small pacifist minority within a larger non-pacifist society.

2. Whether Jesus cleansing the Temple with a whip is really an anti-pacifist example. Reinhold Neibuhr, in his famous essay rejecting Christian pacifism, started off by saying that he was sick of people using the Temple cleansing as an anti-pacifist proof text. It's an issue I couldn't address in the magazine article, due to space limitations, but here's why I still think it's a story which tends to undermine pacifism (although it doesn't tell us anything about lethal force):

Even if you accept the etymological point that Jesus' whip was probably an animal control device, and you also infer (from silence) that he never hit anybody, Jesus still entered the Temple, damaged other people’s property, and frightened people into fleeing by brandishing a weapon, using it against innocent animals, and implicitly threatening people if they dared to remain in the Temple. It is hardly the behavior of a meek person who never does anything violent.

The great pacifist historian of the early church, John Cadoux, pointed out that all four Gospels use a Greek word meaning "to cast out," and the word is repeatedly used elsewhere in the New Testament in non-violent contexts, including a man removing money from his purse. C. John Cadoux, The Early Christian Attitude to War (N.Y.: Seabury Pr., 1982)(1st pub. 1919), pp. 34-35; Luke 10:35. Cadoux continued that the word used in the cleansing of the Temple "need mean no more than an authoritative dismissal. It is obviously impossible for one man to drive out a crowd by physical force or even by the threat of it." Cadoux, p. 35.

Well not really. One man using a weapon, even a non-lethal weapon such as an animal scourge, can often clear a room pretty quickly. Especially if the other people in the room are unarmed, surprised, and (as disarmed subjects of a foreign dictatorship) used to being be submissive to force. The room-clearing is all the easier if the man with the weapon has a strong and fearless personality. It even easier if the man is backed by a wildly cheering crowd in a religious frenzy (such as the crowd that had, in Matthew’s version, just welcomed Jesus into Jerusalem and proclaimed him the messiah).

3. What kind of swords the disciples carried. Some commenters have engaged in a discussion of whether they were machetes, which might be true, although I don't see that changing the point of the story. Some additional facts about the sword issue:

The Apostle Matthew was a tax collector (Matthew 10:3). It's possible that, as a state actor, he might have been exempt from the Roman prohibition on Jewish sword-carrying, which was enacted sometime between 35 B.C. and 5 A.D.

The typical Roman sword of the Republic was the gladius Hispaniensis, whose blade was approximately thirty inches long. In the first century A.D., the gladius was replaced by the Pompeii-type sword, whose blade was only sixteen inches. "The Roman Sword In The Republican Period And After." The latter type of sword would have been relatively easy to carry concealed, especially under loose garments.

In 1694, the Quaker author Thomas Maule tried to refute the pro-weapons implication of the Two Swords text by arguing that the law is the first sword, and Jesus is the second sword. This is an imaginative symbolic reading, but it is utterly contrary to the sense of the passage to assert that there were no real swords involved. A sermon during the American Revolution addressed the Quaker claim:

I think I need not stand long here to confute that impertinency of a conceit that these were spiritual swords....Indeed I could hardly be brought to believe they [Quakers] did hold such an error, if I had not been informed by a person of credit, who assured me he had it from the mouth of one of their speakers or teachers.
O horrid blasphemy! Purchase the spirit of God, or the sword of the spirit, or a spiritual sword, with the price of an old garment. Surely if this was true, then the purse and scrip must be spiritual too, and these bought by selling of old garments; and yet they would be such spiritual swords as would cut off carnal ears and such as would be both visible and sensible, and two of them would be enough.

A Moderate Whig (probably Stephen Case), "Defensive Arms Vindicated and The Lawfulness of the American War Made Manifest" (published in 1783, delivered in 1779), reprinted in Ellis Sandoz, Political Sermons of the Founding Era (Indianapolis: Liberty Fund, 1990), p. 765.

Virginia Law Review's "In Brief":
The Virginia Law Review recently joined the group of law journals offering an online version with at least some unique content. You can visit "In Brief" here. (Hat tip: Larry Solum)

I'm sure the VC's readership includes law students who are on journals that recently added online companions. I'd be very interested to hear from them as to whether the online versions have proved worthwhile. How much traffic are these sites drawing? What formats are working or not working?

Greenburg's Supreme Conflict:
Today is the release date for Jan Crawford Greenburg's new book on the Supreme Court, Supreme Conflict. Amazon delivered it this afternoon, and so far I have read about 40 pages and skimmed another 50. So far it's a must-read. Greenburg's sourcing is incredible, as nine Justices and lots of other insiders agreed to talk with her. (I gather that the nine Justices includes eight of the current Justices plus O'Connor.) If you're a Supreme Court geek, you need this book.

Tuesday, January 23, 2007

I was very surprised this morning to hear NPR's Nina Totenberg mention--more like emphasize--that ten of the twelve jurors in the Scooter Libby obstruction of justice trial are white, and two are black. I've been trying to figure out what possible relevance this has, and haven't been to come up with anything. Is there any reason to believe that whites are easier or harder on obstruction of justice defendants than are blacks? Am I missing something? If I'm right that it's not relevant, I think it's poor practice to mention individuals' race.

UPDATE: Commenters have suggested the relatively obvious proposition that the jury pool was out of sync with D.C.'s population, and perhaps of its jury pool. If so, so what? Is Totenberg claiming that there was a racially discriminatory selection of juries? Or, regardless of whether there was such "foul play," the composition of the jury pool was likely to favor one side or the other? (as discussed in the comments, it's not at all clear whether the racial composition of the jury helps Libby or the government). Certainly, either of these things would be relevant, and the former even important. But all I heard was the statement that the jury pool has such and such many whites and blacks, and also men and women. But, in the absence of a discussion of either of the claims suggested above, it seems quite gratuitous to me. Are we still at such a point in our history that, as some commenters suggest, it's routine in any publicized case, regardless of whether the case has a racial angle, to point out the jurors' race? Put another way, if the jury had seven blacks and five whites, roughly mimicking D.C.'s population, would there be any reason to point this out in media reports? Why not tell routinely tell the audience how many Jews, Catholics, Protestants and Muslims are on the jury? Senior citizens? Disabled? Persons of Irish, Scandinavian, and Italian descent? Some, and perhaps all, of these categories are correlated with various social and political attitudes, but we operate under the assumption that members of these groups are acting as American citizens when they serve as juries, not as members of their particular demographic. Why not have the same assumption for race, at least in cases not involving a racial controversy?

Does anyone know where I can find data on -- or even a good discussion of -- movements in real wages (preferably agricultural wages) in Western Europe (not England) in about 1100-1300, or at least 1200-1300? France, Germany, Flanders, northern Italy -- I'll take whatever I can get.

The Soviets talked a great deal about "Druzhba Narodov," which is to say "Friendship of the Peoples," though in fact the Peoples weren't really that Friendly to each other.

So the joke, of which I was very recently reminded: What is the Friendship of the Peoples? It's when the Georgian walks hand in hand with the Armenian, and with the Ukrainian, and with the Russian, and they all go to beat up the Jew.

One thing I noted about Anisa Abd el Fattah's statements is their repeated and seemingly amicable reference to "White nationalists" -- e.g., "We also believe that the Jewish Lobby has acted to create an environment in the US that is hostile to Muslims, Arabs, and others, including White nationalists, and Christians ...." This Web page describing a page on which Anisa Abd el Fattah appeared (curiously, alongside Noam Chomsky) suggests that Abd el Fattah is black, and of course we know that she is a Muslim. Why then the specific support for White nationalists? Perhaps from a laudable desire to make sure that free speech is protected for all, including even those who would likely hate her for her race and quite likely for her religion?

I notice some references in your message to "White nationalists," but I'm not sure I quite grasp their connection to your argument. I take it that White nationalists tend to try to undermine the equal rights and equal protection of some US citizens. If so, what is exactly your complaint with regard to attempts to create a hostile environment for White nationalists?

She was kind enough to answer:

The point is that every American has equal rights to free speech. That aspect of White nationalist behavior that includes fear mongering, name calling, and intimidation is wrong, yet they argue that their actions result from their frustration that they are stereotyped, and misrepresented by the media and made to appear as enemies of blacks and Jews, and others, when they simply want to preserve the white race, and its majority status. They feel that Jewish supremacism threatens their existence, and that Jewish activism is aimed at limiting their rights, and many Christians feel that same way.

Most of what we are talking about here is how we can colllectively preserve and protect the identies, and rights of groups in the US that have conflicting desires, and sensitivties, while preserving a sense of nationalism, or rather Americanism that can serve as a glue for our society that is strong enough to hold our country togther in spite of some of the stark differences that we represent in race, religion, political outlooks, socio-economic backgrounds etc.

In our opinion, the Bill of Rights is that glue, and a near perfect social contract. I'm not suggesting that we are going to resolve these issues tommorrow, but I am suggesting that we must start. I am praying that the complaint will serve as a first word in a dialogue that will embrace all of the various groups, and that will remove all unfair stigmas, and stereotypes, allowing every group to define itself, and also to set the tone and rules for everyone's co-existence, and participation. The public space is increasingly smaller in my view, making it essential that we begin a dialogue on how 300 million people of different faiths, colors, races, cultures, attitudes, histories, hopes, etc., will share that space as equally and fully entitled American citizens.

Now please correct me if I'm wrong, but it sounds like she actually thinks the White nationalists have a point. True, she says, "That aspect of White nationalist behavior that includes fear mongering, name calling, and intimidation is wrong."

But then she goes on to explain how she feels their pain: "[Y]et they argue that their actions result from their frustration that they are stereotyped, and misrepresented by the media and made to appear as enemies of blacks and Jews, and others, when they simply want to preserve the white race, and its majority status. They feel that Jewish supremacism threatens their existence, and that Jewish activism is aimed at limiting their rights, and many Christians feel that same way." (She literally just says what "they argue" and "feel," but in context it seems like an endorsement of at least the legitimacy of their arguments.)

How touching! A black Muslim seeing white Nationalists not just as evil racists, but as people who have understandable grievances and simple desires. After all, "they simply want to preserve the white race, and its majority status"; simply that, and what they get out of it is "stereotyp[ing]," and "misrepresent[ation] by the media ... as enemies of blacks and Jews." (See here for a similarly touching story.) Seems hardly fair to the poor White nationalists, and even black Muslims should realize it. I mean, aren't we all brothers and sisters? All good Americans? Shouldn't we all be on the same side? Fighting against "the Jewish Lobby," of course.

Anisa Abd el Fattah (head of the National Association of Muslim-American Women, head of the International Association for Muslim Women and Children, and coauthor, as Caroline Keeble, of The Agent: The Truth Behind the Anti-Muslim Campaign in America) passes along this "National Association of Muslim American Women (NAMAW) Statement on Free Speech":

As US citizens and women of faith and conscience, the National Association of Muslim American Women (NAMAW) recognizes, and works to uphold and protect the Constitutional rights of every American.

We believe that the First Amendment and the Bill of Rights are the pillars of freedom, and true liberty in the US and that they are indispensable, and should be interpreted, used and protected as intended, and explained by our country’s Founders.

We do not believe that slander, libel, defamation, perjury, seditious speech, or speech that is intended to undermine the equal rights, and equal protection under the law of any US citizen is protected by the First Amendment.

The NAMAW complaint to the Department of Justice calling for an investigation of the Jewish Lobby is not an attempt to chill, or to remove the right to free speech of Jewish Americans or anyone else.

It is an attempt to end a historic campaign by certain organizations and people, of misinformation and hate mongering against Muslims, Arabs and other Americans who are targeted by these groups, and slandered and defamed as “anti-Semites” or worse, "terrorists" or "potential terrorists" if they utilize their rights to free speech to criticize Israel, question aspects of the Holocaust, or to give an opinion about the US/Israel relationship that is not favorable to Israel, or that is in support of Palestinian rights, or that calls into question the behavior or speech of any Jewish personality or person.

The NAMAW complaint is an effort that is aimed at leveling the political playing field in the US, so that all Americans, rich, poor, Jewish and non Jewish, can participate freely, fairly and equally in the political process, including debates and discussions on any topic, including topics pertaining to the Jewish history, religion, and culture, and also Israel, and Palestine. It is intended to protect the rights of every American to formulate and express a political or religious opinion, make and express their religious and/or political choices, traditions, cultures etc., without fear of reprisal from these organizations and people, and their international network of facilitators.

We believe that the Jewish Lobby in the United States has used its resources and influence to chill, deprive and violate the first amendment rights of other Americans in an attempt to dominate the political discourse in the US on issues related to the Palestine/Israel conflict, and to prevent opposing views, and/or information about Palestinian suffering, and Israeli violations of international law, and human rights abuses from being exposed. We believe that to accomplish this repression, deprivation, and violation of rights of other citizens, the Jewish Lobby and its facilitators and supporters have used threats, harm, and acts of persecution that include defamation, slander, perjury, vandalism and other acts, such as carrying out organized campaigns to deny other citizens their right to life, liberty and the pursuit of happiness.

We also believe that the Jewish Lobby has acted to create an environment in the US that is hostile to Muslims, Arabs, and others, including White nationalists, and Christians so that members of these groups can be discriminated against, and denied rights such as rights to the assumption of innocence unless proven guilty of a crime in a court of law, fair trials, due process, and justice, political association, organizing and petitioning our government on matters related to civil rights, liberties, and foreign policy.

We also believe that the Jewish Lobby in the US has worked to undermine the US Constitution, since the Constitution protects the inalienable rights of all citizens equally. Certain interpretations of the Jewish faith calls for limiting the Constitutional rights of non-Jews, and the establishment of special rights, laws and protections for Jews, and their special interests. We believe that this behavior is criminal, and unconstitutional and that it must be stopped.

"We hold these truths to be self evident, that all men are created equal, and endowed by their Creator with certain unalienable rights, among which are life, liberty and the pursuit of happiness." US Declaration of Independence

NAMAW
Anisa Abd el Fattah
Chairwoman

I leave it to others to discuss what exactly would flow from recognizing a "seditious speech" exception to the First Amendment (see here for the Court's most recent extended discussion of that), or an exception for "speech that is intended to undermine the equal rights, and equal protection under the law of any US citizen is protected by the First Amendment."

But I do wonder just how much protection NAMAW's speech, with its repeated condemnation of "the Jewish Lobby," would likely get if such a standard were adopted. (Even if NAMAW's actual intentions were pure, it would be up to judges and juries to evaluate them.) I likewise wonder about the allegation that "Certain interpretations of the Jewish faith calls for limiting the Constitutional rights of non-Jews, and the establishment of special rights, laws and protections for Jews, and their special interests." Isn't it the case that certain interpretations of the Muslim faith (not all interpretations, but "certain" ones) call for limiting free speech and religious freedom rights of non-Muslims, and the establishment of special rights, laws and protections for Muslims, and their special interests?

In any case, I thought I'd pass this along, in case some of our readers would find this interesting. To get a sense of Anisa Abd el Fattah's public role -- which doesn't seem to be vast, but is apparently not nil -- google Anisa Abd el Fattah or Caroline Keeble (though the latter will get quite a few false positives).

Some religious people--dubbed "pacifist-aggressives" by Eugene Volokh--attempt to use the force of law to make other people live according to a pacifist philosophy. In a new article for America's First Freedom, I address the claim that the New Testament compels pacifism.

Some caveats: 1. It's a large PDF file. 2. The article presumes, for the sake of argument, that everything in the Gospels and the Book of Acts is literally true. 3. The thesis of the article is refutation of the claim of a pacifist mandate, rather than arguing that Gospels/Acts provide clear instruction on all issues regarding self-defense or defense of others. 4. The article does not address non-scriptural arguments for pacifism--such as the Quaker belief that a person who conscientiously listens to his inner light will eventually discern pacifist principles in his own heart.

As Eugene and I have previously noted in this space, Stephen Smith is collected petition signatures to gain access to the ballot to run for Trustee of Dartmouth. Today's issue of The Dartmouth contains a personal profile of him by one of his current students at Virginia Law School. Based on the comments from current and former students on Euguene's prior post on Stephen, the testimony here will come as no surprise. Would that the rest of us law school podium dwellers could elicit such encomiums from our students.

N.Y. Times: "At the end of 2006, 24,200 units were on the market in the Washington area, up from 13,000 at the start of 2005. Sales have slowed to 663 in the fourth quarter of 2006 from 3,520 in the first quarter of 2005, according to Delta Associates." OTOH, sales of single family homes seem to be picking up a bit, at least in the inner suburbs. Because condos, townhouses, and single-family homes are at least to some degrees substitutes, such a disconnect won't last long.

In the wake of the Cully Stimson flap, former Solicitor General Ted Olson and Georgetown's Neal Katyal co-authored a Legal Times commentary urging both left and right to tone down their attacks on lawyers who represent unpopular or "politically incorrect" clients. Olson and Katyal lament that attorneys on all sides of terrorism-related cases have been vilified for their work, and observe that the adversarial system of justice depends upon the vigorous advocacy of popular and unpopular causes alike.

The well-deserved criticism of Stimson’s remarks has thus far not encompassed another disturbing trend: the vilification of government lawyers involved in the war on terror. Some star law school graduates have recently been warned that going to the Justice Department to work on terrorism cases or terrorism policy might harm their long-term careers. Some individuals have taken to calling former Assistant Attorney General Jack Goldsmith, now a Harvard law professor, a war criminal for the advice he gave the government about detention policy. Others have sought to block Assistant Attorney General Peter Keisler from a D.C. Circuit judgeship in part because he personally argued a Guantánamo case in a federal appeals court. These personal attacks have a corrosive effect on the practice of law and on the ability of the government to get the most thoughtful legal advice.

With the war on terror, which unfortunately may go on for generations, America doesn’t have any margin for error. The legal issues that surround this war are enormously intricate and don’t lend themselves to sloganeering-based solutions. When government officials are called “war criminals” and when public-interest lawyers are called “terrorist huggers,” it not only cheapens the discourse, it scrambles the dialogue. The best solutions to these difficult problems will emerge only when the best advocates, backed by weighty resources, bring their talents to bear. And the heavy work of creating solutions for these complicated issues can only move forward when the name-calling ceases.

Attorneys should not be above criticism, they argue, but criticism should focus on "the merits of the particular position being argued rather than personally on the advocate." I would add that there is a difference between criticizing a lawyer for the way she represents a client — that is, the arguments made, defenses raised, etc., — and attacking the mere fact of representation. Likewise, an attorney's obligation to engage in zealous advocacy on behalf of his clients does not require him to make frivolous or false arguments.

A final note: Olson and Katyal have represented opposing sides in detention-related cases. Their agreement here is significant.

If you take Second Amendment issues into account when deciding whom to support, or if you simply are interested how the candidates will likely fare with an important bloc of voters, here's a preliminary assessment of some of the people who have been listed as likely or definite candidates. As much as possible, the ratings are based on actions while in government, rather than on current rhetoric. Of course the list can also be read in reverse order, to assess the probable allegience of voters who are very strong gun control advocates. These rankings are subject to revision, as additional information is acquired.

Mixed: Sen. John McCain (R-Ariz.)(mostly positive record, except for lead sponsorship of two terrible bills: McCain-Lieberman, a badly-written bill which would have given the BATFE the authority to administratively eliminate any or all gun shows, and McCain-Feingold, the campaign speech restriction law which significantly affects right-to-arms groups).

Poor: Former Gov. George Pataki (R-N.Y.). Former Gov. Mitt Romney (R-Mass.). As noted by, inter alia, the Boston Globe, Romney's flip-flops on guns are part of a larger record of inconsistency.

I don't know: Former Sen. Mike Gravel (D-Alaska). He has been out of Congress for 25 years, and I don't know his voting record from his 1969-81 Senate terms. Given that he represented Alaska, and that he was (and is) a fervent populist, I would be surprised if he had a record of support for gun control.

In the comments, please focus on information to make these rankings more precise, rather than arguing the pro/con merits of the Second Amendment or gun control.

One final note: It's nearly impossible to rate the candidates overall on "civil liberties," since the ranking would depend on the relative importance that one gives to, say, property rights vs. privacy rights vs. abortion rights vs. speech rights. But Rep. Ron Paul, as a libertarian, would have to rank pretty high. Conversely, one would have to be concerned about Mayor Giuliani's record as U.S. Attorney for the Southern District of New York, which includes a number of highly-publicized, reputation-destroying white collar criminal prosecutions which were later overturned in appeal, in part because of prosecutorial over-reaching. One would also have to be concerned that Gov. Romney has enlisted the fund-raising talents of Mel Sembler, the entrepreneur who created a highly profitable chain of teenage drug "treatment" programs which have been been successfully sued for false imprisonment, assault, and other forms of child abuse.

Want to know the 9 unwritten rules for freshman legislators? Check out my father's latest column for the Colorado Statesman, based on his 22 years of service in the Colorado House of Representatives. For example:

Rule No. 1: Don't go to the front to speak and merely state "I'm going to vote for this bill." Go to the front to speak for the first time when you have studied the bill being debated, can explain its merits and defects, and can produce some suggestions that the other legislators might find useful.

In a very small town, people are close. That doesn't mean they are all friends. But when you are close, it's hard to hide a true personality, actual ability, or lack of ability, behind a facade. For better or worse, halfway through a legislator's first year, he or she is pegged at a certain level, and it may take years before original perceptions are discarded.

Rule No. 5. Never surprise a legislator by making your objections known for the first time at a committee hearing. I have seen legislators almost apoplectic when that happens and you have made an enemy for life. Former Sen. Vince Massari of Pueblo kept a little black book. When he felt wronged, the name and event went into the book. If he had a chance for revenge he took it even if he would otherwise have supported the issue because it helped his constituents. For some legislators, revenge is the sweetest dessert.

[Former legislator] Steve Durham and I entered a capitol elevator the other day while the Democrat and Republican House legislators were in caucus discussing the long bill.
Durham: "What's the difference between a cactus and a caucus?"
Kopel: "I don't know, what is the difference?"
Durham: "With a cactus, the pricks are on the outside."

"A Good Week for Blacks in Popular Culture":
Over at BlackProf, my colleague Paul Butler has a very interesting post noting black achievement in popular culture right now:

Three of the top five movies feature predominately African-American casts. Three of the top five songs are by black artists (and the remaining two artists- Fergie and Nelly Furtado - would be nowhere without African-American producers). Barack Obama has the best selling hardcover non-fiction book in the country. Three of the top ten paperback non-fiction best sellers are by blacks (and a fourth- the Freedom Writers Diary - is an anthology that prominently features African-American writers). And two African-American coaches are going to the Big Dance.

And perhaps most interesting of all, most of these achievements aren't considered newsworthy.

Near v. Minnesota (1931), which is -- depending how you count it -- either the second or third Supreme Court case to strike down government action on freedom of speech or freedom of the press grounds, and the first such case to focus on the freedom of the press.
Near struck down an injunction against a publication that had libeled people in the past, and the legal issue focused on whether such injunctions are generally impermissible "prior restraints," not on whether anti-Semitic speech is constitutionally protected. But the case did involve a harshly anti-Semitic publication.

Monday, January 22, 2007

Symposium on "Search and Seizure in a Digital Age":
On Friday, I'm going to be participating in a terrific symposium at Stanford that might be of interest to VC readers: Search & Seizure in the Digital Age, hosted by the Stanford Center for Internet and Society, Stanford Criminal Justice Center and Stanford Technology Law Review. The symposium will run all day at the Stanford Law School, and has a terrific lineup of presenters and commenters. If you're into these issues, it's definitely worth checking out.

Stanley Fish on Hosting the GWB Presidential Library:
In a blog post hidden behind the TimesSelect barrier over at the N.Y. Times, Stanley Fish has an interesting post arguing that members of the SMU community should be proud to host the George W. Bush Presidential Library regardless of what they think of the current President. Here's the gist of Fish's argument:

A university is pledged to determine the truth of the texts its faculty studies. It is not pledged to confining itself to texts of whose truthfulness it is convinced. A university is pledged to the integrity of the work that goes on within its precincts. But it is not pledged to conduct that work only on persons and agenda of whose integrity it is confident. A university is pledged to respect the persons of its employees, which means that it evaluates everyone by the same set of nondiscriminatory standards. But it is not pledged to restrict the object of its academic attention to people and groups who do not discriminate. A university is pledged to use its resources – money, equipment, labor – responsibly, but neither the responsibility or irresponsibility of those entities it chooses to study is something it is pledged to consider. Those who think that by insisting on a moral yardstick, the university protects its integrity have it all wrong; the university forsakes its integrity when it takes upon itself the task of making judgments that belong properly to the electorate and to history. A university’s obligation is to choose things worthy of study, not to study only those things it finds worthy. College Station, Tex., the home of George H.W. Bush’s library, has become an obligatory stop on the lecture circuit. And while Dallas is no backwater, its cultural and intellectual life would surely be enriched by the presence of still another world-class attraction.

Abd el Fattah has sent me and others an e-mail in response (paragraph breaks and emphasis added):

While trolling the net today, I came across ... [your material] commenting on the NAMAW letter of complaint to the Justice Department against the Jewish Lobby.

The position that you appear to take on this issue is very interesting, especially since I have never heard Jewish academicians argue so robustly for the right of people to have free speech rights to deny the holocaust, or to compliment Hitler, or to say that Israel should be wiped off the map. Every time any such statement is publicized, in whatever context, Jewish people raise a fuss, and the speaker is ordained, an "anti-Semite," in an effort to deny their right to free speech by making the price of such speech so high that it wont be utilized.

I'd like to ask if you believe that there is one standard of free speech for Jewish people, and another for other Americans. I'd also like to know why you sought to characterize our position as "against" free sppech and civil rights for Jews, without asking me if that is actually our position, or even allowing me to give my opinion on the 1st amendment, prior to your posting your opinion about what you thought I meant or said, or what you feel compelled us to submit a complaint. I have cc'd several others on this e-mail, since I want my comments to be public, so they cannot be misrepresented, and also your response, should you decide to respond....

Let me respond in turn:

(1) I can't speak to what Anisa Abd el Fattah has heard; but a quick search reveals that quite a few Jewish "academicians" have spoken out in favor of free speech rights for Holocaust deniers and for Nazis and Hitler sympathizers more broadly. Harvard law professor (and noted commentator on Jewish matters) Alan Dershowitz, in the Jerusalem Post, Mar. 17, 1998: "Even Holocaust denial speech — among the most offensive imaginable — should not be censored." Nadine Strossen, law professor and ACLU President, 25 S. Ill. U. L.J. 243, 279 (2001): "I support free speech for Nazis and other anti-Semites not despite my background and my first-hand experience with the evils of anti-Semitism, but rather, precisely because of that fact." Me: "Holocaust denial laws are ... pernicious." There are plenty of other such examples. (I can't give similar examples as to statements urging that "Israel should be wiped off the map," because I know of no incidents in America where anyone has even suggested that such speech should be restricted, and thus of no scholars who have had occasion to disagree with such suggestions.)

(2) Let me turn, though, from my view and the view of many other scholars, Jewish and otherwise, and look a bit at Abd el Fattah's. She writes that "[any time a statement] deny[ing] the holocaust, or ... compliment[ing] Hitler, or ... say[ing] that Israel should be wiped off the map ... is publicized, in whatever context, Jewish people raise a fuss, and the speaker is ordained, an 'anti-Semite,' in an effort to deny their right to free speech by making the price of such speech so high that it wont be utilized."

Now, I would hope that when people compliment Hitler or deny the Holocaust, or say that Israel should be wiped off the map — not just that Israel is in error in some way, but that it should be wiped off the map — it isn't just "Jewish people" but other people as well who would protest.

But beyond this, what exactly is wrong with inferring that people who "compliment Hitler" are likely anti-Semites (in all but the most unusual of contexts)? Are there are a lot of people who have nothing against Jews but compliment a man who is remembered for (among other things) deliberately arranging the slaughter of six million Jews? Shouldn't we "raise a fuss" about such compliments — not by asking federal prosecutors to "take the steps necessary to end" the statements, but by condemning the speech? If the "price of such speech [is made] so high" because people widely condemn the speech and the speaker, that is the exercise of free speech, not a denial of free speech.

Likewise, it's possible that some Holocaust deniers are not anti-Semites. And it's possible that some people who want Israel "wiped off the map" (a term that both in its tone and its substance suggests a violent destruction of the nation and likely a substantial chunk of its inhabitants) are not anti-Semites. (Note that I'm not speaking here simply of disagreement with Israel's policies, but a call for it to be "wiped off the map.")

Still, it's a fairly plausible inference that these speakers are indeed anti-Semites. And even if they aren't anti-Semites, it's quite proper for "people [Jewish or otherwise to] raise a fuss," and impose a social price on such speech by persuading people to strongly condemn it. People who make these statements should "have free speech rights" to do so free of the Justice Department's "tak[ing] the steps necessary to end" the speech. But they naturally have no right to make the statements free of others' making statements disagreeing.

So I'm rather puzzled by Abd el Fattah's reaction. Does she think that when people "deny the holocaust, or ... compliment Hitler, or ... say that Israel should be wiped off the map," people shouldn't "raise a fuss"? Does she think that "compliment[ing] Hitler" is not likely to be evidence of the speaker's "anti-Semit[ism]"? And if she doesn't take such views, then how can one explain her e-mail?

(3) As to "why [I] sought to characterize [the letter's] position as 'against' free sppech and civil rights for Jews": The letter calls on the Justice Department to "take the steps necessary to end" various "practices," which apparently include — for the reasons I gave — First Amendment-protected speech by "the 'Jewish lobby'" and others. Sounds like a restriction on free speech to me.

Nor did I see much reason for asking Abd el Fattah "if that is actually our position, or even allowing me to give my opinion on the 1st amendment, prior to your posting your opinion about what you thought I meant or said, or what you feel compelled us to submit a complaint": The letter (which Anisa Abd el Fattah sent out as a press release) seemed to speak for itself, and I didn't see need to ask for further clarification.

This having been said, I'd be delighted to hear Anisa Abd el Fattah's views on the First Amendment more generally. I have e-mailed her asking for those views, and I'd be glad to post them and respond to them later.

Supreme Court Strikes Down California Sentencing Scheme:
The Supreme Court handed down its latest decision in the Apprendi/Blakely/Booker line of Sixth Amendment sentencing decisions. The Court's decision, Cunningham v. California, invalidated California's sentencing scheme on the ground that it was too much like the scheme invalidated in Blakely.

Given the substitution of two Justices since the Booker case, perhaps the most interesting aspect of the decision is the vote line-up. The vote was 6-3, with the Apprendi Five in the majority (of course) joined by Chief Justice Roberts. Ginsburg wrote the majority opinion, and there were no concurrences. Justice Kennedy wrote a short dissent, joined by Justice Breyer, expressing his view that the Blakely Revolution remains a wrong turn and should be construed in a narrower way than the majority prefers. (AMK also cites the recent Blakely article authored by lawprofs Doug Berman and former AMK clerk Stephanos Bibas along the way). Justice Alito also dissented, joined by Kennedy and Breyer, and argued that California's sentencing scheme is indistiguishable from the non-mandatory guidelines approach permitted in Booker.

In today's Wall Street Journal, Jan Crawford Greenburg has a subscribers-only op-ed aobut Justice Clarence Thomas adapted from her new book. She argues that, from the beginning, Justice Thomas has been far more independent and influential than many realize. Here are the opening grafs:

Clarence Thomas has borne some of the most vitriolic personal attacks in Supreme Court history. But the persistent stereotypes about his views on the law and subordinate role on the court are equally offensive — and demonstrably false. An extensive documentary record shows that Justice Thomas has been a significant force in shaping the direction and decisions of the court for the past 15 years.

That's not the standard storyline. Immediately upon his arrival at the court, Justice Thomas was savaged by court-watchers as Antonin Scalia's dutiful apprentice, blindly following his mentor's lead. It's a grossly inaccurate portrayal, imbued with politically incorrect innuendo, as documents and notes from Justice Thomas's very first days on the court conclusively show. Far from being a Scalia lackey, the rookie jurist made clear to the other justices that he was willing to be the solo dissenter, sending a strong signal that he would not moderate his opinions for the sake of comity. By his second week on the bench, he was staking out bold positions in the private conferences where justices vote on cases. If either justice changed his mind to side with the other that year, it was Justice Scalia joining Justice Thomas, not the other way around.

Sunday, January 21, 2007

Article II and the 2008 Campaign:
Given that many people approach questions of constitutional law with an eye to their political implications, does anyone want to guess how Hillary Clinton's announcement that she is running for the Presidency in 2008 will influence debates on the scope of Executive Power?

State Department attorney John Bellinger has a wrap-up post at Opinio Juris responding to his critics. Of all the various officials asked to defend the administration's policies in the war on terror, Bellinger is among the most articulate and nuanced. I am surprised the adminsitration doesn't put him out front more often.

Jan Crawford Greenburg has an article in the Washington Post/s Outlook section suggesting that the appointment of conservative judges has been one of the few (if not the only) successful major initiative of the Bush Administration. Near the end of the article, which appears to be based upon her new book, she has an interesting account of the Alito nomiation:

Alito was waiting in the wings when Miers's nomination fell apart. Unlike Reagan, who appointed the more liberal Kennedy to the court in 1987 after his nominations of Robert H. Bork and Douglas H. Ginsburg went down in flames, Bush had no problem seeking another solid conservative. With a Republican majority in the Senate, he did not compromise. Alito was considered a solid conservative, though not combative like others, and he had hired liberal law clerks. Bush hoped that Alito, like Roberts, would prove effective in building coalitions.

The call from the White House surprised Alito. Living in New Jersey, he had been insulated from the negative Washington buzz over Miers. He had absorbed the disappointment about being passed over and had come to terms with remaining a federal appellate judge. Alito didn't know that he had been Miers's choice for the O'Connor vacancy after Roberts got the nod for the top spot. She liked his quiet confidence; he didn't seem to be pushing too hard for the job. When Alito was nominated just four days after Miers dropped out, she greeted him warmly in the White House, moments before Bush introduced him as his next nominee.

Sunday Song Lyric:
The retirement of Shawn Corey Carter, better known as Jay-Z — the self-proclaimed "Michael Jordan of recordin'" and "Rap's Grateful Dead" — was quite short-lived. His comback album, Kingdom Come, almost sounds as if he never left the game. It has a few weak spots — and lacks a good exam hypo — but still features Jay-Z'ss trademark flow.

The biggest change is not Jay'Z's flow, but his maturity. Several tracks are traditionally boastful routines, but now Jay-Z disses those who lack his experience and wisdom ("thirty is the new twenty"), not just his record sales and bling. He may be getting older, but he's getting better ("I'm just getting better with time; I'm like Opus-One") — and he's definitely richer ("what you call money I pay more in taxes"). From "30 Something":

I know everything you wanna do
I did all that by the age of twenty-one
By twenty-two, I had that brand new Ac' coupe
I guess you could say that my legend just begun, I'm
Young enough to know the right car to buy
Yet grown enough not to put rims on it
I got that six-deuece with curtains, so you can't see me
And I didn't even have to put tints on it
I don't got the bright watch, I got the right watch
I don't buy out the bar, I bought the nightspot
I got the right stock, I got
Stockbrokers that's movin' it like white tops

Jay-Z also turns serious and somewhat reflective at points, on issues large and small. In "Minority Report" — his take on Hurricane Katrina.

People was poor before the hurricane came
But the down pour poured is like when Mary J. sang
Every day it rains, so every day the pain
But ignored them, and showed em the risk was to blame
For life is a chain, cause and effected
***** off the chain because they affected
It's a dirty game so whatever is effective . . .

Left ‘em on they porches same old story in New Orleans
Silly rappers, because we got a couple Porches
MTV stopped by to film our fortresses
We forget the unfortunate
Sure I ponied up a mill, but I didn't give my time
So in reality I didn't give a dime, or a damn
I just put my monies in the hands of the same people that left my people stranded
Nothin' but a bandit
Left them folks abandoned
Damn, that money that we gave was just a band-aid

On another track, "Kingdom Come," Jay-Z justifies his decision to stop buying and promoting Cristal:

**** Cristal, so they ask me what we drinking
I thought dudes remark was rude okay
So I moved on to Dom and Krug Rose
And it's much bigger issues in the world, I know
But I first had to take care of the world I know

Ben Cardozo Meets Bat Masterson:
When I was a boy, I used to enjoy the series Bat Masterson, starring Gene Barry. I even had a toy Bat Masterson cane. Recently, I started watching some old episodes of Bat Masterson on the Western Channel (Pictures and theme song here). Although far from the quality of Maverick with James Garner and Jack Kelly (and later Roger Moore), The Rifleman with Chuck Connors, and Wanted Dead or Alive with Steve McQueen, I can see its appeal. In each of the episodes I have watched so far, Bat seeks some form of justice against wrong-doing.

The Wikipedia article on Bat Masterson contained a link to the surprising story of a libel lawsuit brought by Masterson, who ended his career as a sportswriter for the New York Morning Telegraph, against the New York Globe and Commercial Advertiser. After Masterson characterized a prize fight in Madison Square Garden as fixed, the paper had printed an article that included a statement by one of the fighter's manager that Masterson had "made his reputation by shooting drunken Mexicans and Indians in the back.” The publisher retained none other then Benjamin Cardozo to represent it. Masterson sought $25,000 in damages.

In the Masterson case, Cardozo’s defense strategy rested on the grounds that Ufer’s statement was essentially accurate, that it was not meant to be taken seriously, and that it could not have caused Masterson’s reputation any harm. . . .

In his cross-examination, Cardozo sought to establish that Masterson had indeed killed several men, including Indians. His initial question to Masterson was: “How many men have you shot and killed in your life?” Masterson denied killing 28 men as repeatedly reported by the press. Instead, he ventured that the number was probably three, a soldier in Texas who had shot him first, a Texas cowboy in Dodge City who had just fatally wounded his brother, Sheriff Ed Masterson, and another Texan, a wanted murderer, in 1879. He added that he had also shot a man in Dodge City in 1881, but didn’t know if he’d killed him or not. As for Indians, he professed not to know whether he’d ever shot any, noting that in battle “I certainly did try to shoot them. . . . It wasn’t my fault that I didn’t hit them. . . . I haven’t any idea of and can’t give you any notion as to whether any of them fell under my fire.”

You can read the whole story here, but the article includes these excerpts from Cardozo's cross-examination of Masterson:

Record at 22:
Q. Now, do you think of any other fights that you ever had?
A. Well, I am not thinking; I suppose you are doing all the thinking. I do not know of any other fights that I ever had; I have never had very many fights.
Q. You don’t think you have been a fighting man at all?
A. No, indeed; I never had any one accuse me of it.
Q. How many fights have you had?
A. Well, I am 59 years old, and I have been – I can’t tell you. I told you all about the serious troubles. The fist fights, if that is what you are referring to, I couldn’t tell you anything about that.

Record at 23:
Q. Your counsel asked you whether you ever carried a pistol. When did you stop carrying a pistol?
A. When I ceased to be an officer. That has been a good many years ago. I was a United States officer here, and never carried any; and I haven’t carried any in New York for the last ten years. The last time that I carried a pistol was, I think, probably in Denver when I was acting as Deputy Sheriff.
Q. Did you ever carry a pistol in the City of New York?
A. Yes, sir.
Q. Then it wasn’t the last time that you carried a pistol when you were acting as Sheriff in Denver was it?
A. No. I had almost overlooked the New York incident.

Record at 24:
Q. You were arrested on the charge of being mixed up in a crooked faro game, weren’t you?
A. Well, I never knew what I was arrested for; there was never any complaint against me.
Q. You mean to say that you didn’t make any inquiry as to what the charge against you was?
A. No; I never learned. I attempted to. I heard what they said, and that is all I know about it.

Record at 26–27:
Q. You have, in your judgment, quite a reputation in this town, haven’t you Mr. Masterson?
A. Well, I don’t know what you mean by “reputation”; good or bad? What do you mean?
Q. Well, you are well known, – generally known, I mean?
A. Well, yes; yes, sir; I am very well known. I was well known when I came here. I don’t think my reputation had been made by the affrays which I had been engaged in, in the West.

Record at 32:
Q. You have killed a great many men including your affrays in the Indian War, haven’t you?
A. I think I have stated all here.
Q. Well, you are proud of those exploits in which you killed men aren’t you?
A. Oh, I don’t think about being proud of it. I do not feel that I ought to be ashamed about it; I feel perfectly justified. The mere fact that I was charged with killing a man standing by itself I have never considered an attack upon my reputation.

The jury returned a verdict $3,500 for Masterson, along with $129.25 in costs. Cardozo appealed and the Appellate Division reversed the trial court by a 3-2 vote, and awarded a new trial unless the plaintiff stipulated to a reduction of the verdict to $1,000. Less than a month after the appellate decision, Cardozo became a trial court judge. Masterson died in 1921 while working at his desk. His last words were found in his typewriter in the column he had been writing:

There are those who argue that everything breaks even in this old dump of a world of ours. I suppose these ginks who argue that way hold that because the rich man gets ice in the summer and the poor man gets it in the winter things are breaking even for both. Maybe so, but I'll swear I can't see it that way.